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Nevada Crimes A-Z

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California Burglary Laws Penal Code 459 PC

Penal Code 459 PC defines "burglary" as "entering a

room,

structure, or

locked vehicle

with the intent to commit a felony (or, in some cases, a petty theft) once inside."1

Burglary is often referred to as "breaking and entering." But prosecutors can charge you with this offense even if there is no forced entry of a room or structure.2 Only auto burglary requires an actual break-in.

Examples of burglary:

Breaking into a house to steal jewelry or electronics.

Walking into someone's open garage to steal a bicycle.

Entering a department store with the intent to steal an expensive appliance.

Entering a Bank of America branch with the intent to cash a check that you know is fraudulent.

Entering an office building with the intent of committing a felony assault.

Breaking a car window and stealing the radio.

Photograph by Flickr user lanchongzi.

Penalties for residential (first degree) burglary in California

Burglary of a house, apartment, hotel room (or other structure where people are living) is always a felony in California. It is known as "first degree burglary" or "residential burglary."3

Penalties for commercial (second degree) burglary in California

Burglary at a store, business (or any place where people are not residing) is considered "second degree burglary" in California.4 It is also referred to as "commercial burglary."

(If you enter a store or other business while it is open during regular business hours, intending to steal items worth nine hundred fifty dollars ($950) or less, then you will be charged not with burglary but with the related offense of shoplifting under Penal Code 459.5 PC.)

Commercial burglary is a "wobbler" offense. This means prosecutors may elect to file the charge as either a misdemeanor or a felony. The choice of felony versus misdemeanor usually hinges on the circumstances of the offense and the person's criminal record, if any.

As a misdemeanor, burglary charges carry up to one year in county jail. Felony commercial burglary can subject you to a jail sentence of up to 3 years.

Legal defenses to burglary charges

You were present when other people committed the burglary, but you were not in on it.

You did not form the intent to commit a felony or theft until after you entered the building or room.

You took items from the building because you genuinely believed the owner had given you permission.

The items you took actually belonged to you.

We are a statewide law firm whose attorneys include former prosecutors and cops. To help you better understand Penal Code 459 PC and some common defenses to burglary charges, our California criminal defense lawyers will explain the following:

In order for you to be convicted of burglary, the prosecutor must prove two facts (known as "elements of the crime"):

that you entered a building, room, or other specified enclosure...or you broke into a locked vehicle...and

that, at the time you entered, you had the intent to commit a theft or a felony inside.5

Let's take a look at these terms to get a better understanding of these elements.

1.1. Buildings and other specified enclosures

Generally speaking, a "structure need only be one having four sides and a roof."6 Put another way, a "building" is any structure designed for and having the capacity to contain people or animals, or to shelter property.7

Penal Code 459 names some of the structures that may be the subject of a burglary. More than 20 types of buildings and other locations are specified. These include (but are not limited to):

"traditional" housing (homes, rooms, apartments),

mobile housing (campers and trailers),

commercial buildings (shops, stores, and warehouses),

modes of transportation (cars, boats, airplanes, and railroad cars), and

animal enclosures (barns and stables).8

Courts have interpreted the meaning of "enclosure" quite broadly.9 The basic test is whether a reasonable person would expect some protection from unauthorized intrusion.10

Examples of enclosures protected under Penal Code 459:

An apartment building.11

A department store.12

A service station.13

An office area separated from a public lobby by a waist-high counter.14

A chicken house.15

A telephone booth.16

A loading dock.17

A house's entryway closet.18

A carport.19

Examples of enclosures that are NOT covered by California's burglary law:

A large metal toolbox.20

A fenced yard.21

1.2. Entry

Sometimes it's obvious when you enter a building or other location. For instance, when you walk or climb through or over a wall, door, roof or window, it's clear that you have "entered" a location.22

But there are less obvious forms of entry as well. For purposes of California burglary law, you "enter" a building or other location whenever:

any part of your body crosses the outer limits of that location23, or

any object under your control crosses those limits.24

The test for entry is whether a reasonable person would believe that a member of the general public could not pass without authorization.25

Examples of entry:

You remove a screen from a building's window.26

You stick your arm through your neighbor's doggie door and reach up to try to turn the doorknob from the inside.27

You break a store's display window and reach inside to steal a necklace.28

You pry open the window to a warehouse and stick a flashlight inside to look around.

You climb onto a private balcony on the second floor of an apartment building.

You kick in the door of someone's house.

Removing a screen and "crossing" the space between the screen and the window satisfies the entry requirement for a burglary.

1.3. Intent

The prosecutor must prove that at the time you entered the location you intended to commit one of the following crimes (described below):

petty theft,

grand theft, or

any felony.

Example: You are invited to a party at someone's house. As you are leaving, you decide to take a bottle of vodka that is sitting on a table. Since you did not enter the house with the intent to steal the alcohol, you have committed the crime of theft...but not the crime of burglary.

It isn't necessary for the prosecutor to prove that you actually committed the intended crime. He or she need only show that at the time you entered the location, you intended to do so.

Like "entry," intent is sometimes obvious. At other times, it's not so clear.

Example: You are caught stealing a $1000 sport coat at Nordstrom. In your purse you have scissors (to cut price tags) and concealed bags (to place the stolen merchandise in). This circumstantial evidence tends to suggest that you went to the store with the purpose of stealing merchandise.

But... Let's say you don't have scissors or concealed bags. Now the prosecutor may find it difficult to prove that you entered the store with the intent to steal. If you didn't form the intent to steal until after you were already inside the store, you haven't committed burglary.

You can also be charged with burglary if, once inside a building, you form the intent to enter a specific room in order to commit a crime. This is true even if you didn't intend to commit a crime at the time you entered the building.

Example: You are invited to a party at a friend's home. You follow a girl into a bedroom intending to steal her diamond necklace at gunpoint. Because you formed the intent to commit robbery (a felony) prior to "entering" the room, you have committed burglary as well as robbery.

But... Let's say that instead you went into the bedroom to retrieve your coat. While you were there, the girl came into the room. Only then did you decide to rob her. Because you did not have the intent to commit a felony at the time you entered the room, you are not guilty of burglary.

1.4. "Any felony"

The "any felony" language of Penal Code 459 has been held to cover both:

offenses that can be charged only as a felony ("straight" felonies), and

offenses that a prosecutor may optionally charge as either a felony or a misdemeanor (California "wobbler" offenses).

Straight misdemeanors (other than petty theft) are excluded from the intent provision of Penal Code 459.

Example: you enter a residence intending to murder the people inside. Murder is a felony. So even if you don't end up killing them, you are guilty of residential burglary.

Note that felonies do not need to be violent in order to give rise to burglary charges.

Examples of non-violent felonies include (but are not limited to):

extortion (Penal Code 518),

forgery (Penal Code 470), and

grand theft (Penal Code 487).

2. The difference between first and second degree burglary – Penal Code 460 PC

California Penal Code 460 PC separates burglary into first and second degree burglary.

2.1. First degree ("residential") burglary

First degree burglary is commonly referred to as residential burglary and is the more serious of the two types. First degree burglary is always a felony.

Under Penal Code 460, you commit first degree burglary if you burgle any inhabited dwelling.

An inhabited dwelling is a place where someone lives or sleeps. However, this does not mean that the specific area must be used for sleeping or everyday living. Rather, it is "whether the area is functionally interconnected to and immediately contiguous to the residence, which is used for sleeping or everyday living."

A dwelling is "inhabited" if it is used for dwelling purposes, whether or not it is currently occupied.

Examples of "inhabited dwellings":

The common laundry room of an apartment building.

The lobby of an apartment building.

A hotel room someone is renting for a night.

A hospital room.

A dormitory room.

An attached, residential balcony.

A tent.

A garage attached to a house.

For purposes of triggering a burglary charge, the building or room cannot be (a) the place in which you yourself live or (b) a business that you own. Since you have the right to be there, any entry into such a place is lawful.

Example: Someone calls you and tells you your girlfriend is in your house cheating on you with your best friend. You go home, planning to catch them in the act and shoot them. Because you have an absolute right to be in your home, your actions don't constitute burglary.

But... Let's say that your girlfriend and your friend are at your friend's house. You have a key to your friend's house because you sometimes walk his dog. But even though you have a key, you have no possessory interest in his house. As a result, entering with the intent to shoot them constitutes burglary.

And finally, note that a mistaken belief that a house is not inhabited is not a defense to first degree burglary. This is true even if your mistake was a reasonable one. If you enter a structure with the intent to commit a felony, you assume the risk that it might be inhabited.

2.2. Second degree ("commercial") burglary

Second degree burglary...commonly referred to as commercial burglary ... encompasses every type of structure other than places where people live.

Second degree burglary is a "wobbler" offense. This means that it may be prosecuted as either a felony or a misdemeanor, in the prosecutor's discretion.

Photograph by Flickr user osseous/Victor Martinez.

Sometimes burglary goes down like this, but the crime need not involve a literal "break-in." To be convicted of burglary in California, you need only enter a structure with the intent to commit a felony or theft therein. Only burglary of a vehicle requires an actual break-in.

It is interesting to note how this law has changed. In the late 1800s, first degree burglaries were those committed at night. Second degree burglaries were those committed during the day. In 1923, first degree burglary expanded to include inhabited dwelling houses that were burgled at night. Also added were burglaries that involved deadly weapons or assault, regardless of the time of day the burglary occurred.

In 1976, the legislature deleted the language regarding weapons and assaults. And in 1982, the nighttime requirement was deleted. Since then, the pertinent part of the law has remained the same.

Like residential burglary, commercial burglary requires an entry that invades someone else's possessory interest. However, the entry must be by a tool or at least some part of your body. Merely invading the "air space" of a business with some innocuous object is not enough.

Example: You pass a forged check through a chute at a walk-up teller window. Even though forgery is a "wobbler" offense, you have not committed burglary. For purposes of Penal 459, there is no "entry."

Similarly, if you use a stolen ATM card to obtain money, that does not constitute burglary, either.

3. Auto Burglary

An "auto burglary" takes place when you enter the interior of a locked car with the intent to:

Unlike a typical burglary, an auto burglary requires an actual "break in". Furthermore, it is auto burglary only if the vehicle is locked. Entering an unlocked car may be a violation of Penal Code 602 trespass (described below) or vehicle tampering. But it is not burglary.

Auto burglary is second degree burglary. It is prosecuted under California Penal Code 459, just like "regular" burglary. It therefore subjects you to the same penalties.

Examples of entry of a locked vehicle:

pushing open a broken wing lock on the window and reaching an arm inside the car to unlock the door.

prying open a trunk lid to steal a tire.

breaking open the hood of a vehicle.

reaching through a car window that has been cracked for ventilation and unlocking the door.

Examples of acts that are NOT entry of a locked vehicle:

opening an unlocked passenger door and lifting a trunk latch to gain access to the trunk.

"entering" into the headlamp housings of an automobile to steal its headlamps.

If you are sentenced to probation, you may serve little or no time in jail. You will, however, have to abide by certain conditions. These include appearing in court for periodic "progress reports."

4.2.2. Felony second degree burglary – penalties / probation

If you are convicted of second degree burglary as a felony, you face:

Probation with up to one year county jail, OR 16 months, or two or three years in county jail, and

A $10,000 maximum fine.

If you are sentenced to felony probation in California, you will have to comply with certain terms and conditions. In addition to meetings with a probation officer, these may include some time in county jail, victim restitution and community service.

Some of the reasons why the judge would approve and issue a probation sentence include (but are not limited to):

the circumstances of your burglary were less serious than "typical" burglaries,

you only committed the burglary because you were provoked or coerced into doing so and you have no prior criminal record, or

you have a mental health condition that would benefit from treatment if the judge ordered it as a part of your probation sentence.

Some of the reasons why the judge might deny probation include (but are not limited to):

the circumstances of your offense showed a high level of criminal sophistication,

you used a weapon, or

you took advantage of a position of confidence or trust to commit the burglary.

However, under California Penal Code 462 PC, the judge may not sentence you to probation if you were convicted of burglarizing an inhabited dwelling. The exception is the "unusual case where the interests of justice would be best served by doing so."

4.3. Use of explosives or acetylene torches during a burglary

Penal Code 464 makes it a felony to use explosives, acetylene torches or similar devices during a burglary (to open a safe, for instance).

Penal Code 464 applies to both residential and commercial burglaries. Punishment for violation of this section is by three, five, or seven years in the state prison.

4.4. Sentencing enhancements

Under California law, your burglary sentence can be enhanced if certain conditions are met. A sentence is enhanced by making it longer.

Sentencing enhancements that are often applied in connection with burglary include (but are not limited to):

Under Penal Code 667.5, if you are convicted of felony burglary (whether first or second degree), you will receive an additional and consecutive one-year sentence for each of your prior felony convictions for which you actually served time.

The enhancement will not be imposed, however, if you have remained free of imprisonment and other felony convictions for five (5) years prior to your new burglary case.

It applies if during a burglary you cause another person serious physical harm. A great bodily injury enhancement adds an additional and consecutive three to six years in state prison to your sentence. Exactly how long the enhancement is depends on:

the nature of the injury, and

the nature of the victim (such as people over the age of 70 and children under 5).

5. Legal defenses to California burglary charges

While burglary's penalties can be quite severe, there are numerous defenses that a skilled California criminal defense lawyer can present on your behalf. The following are some of the most common.

5.1. Lack of Intent

Intent is critical to a burglary prosecution, as is the timing of it. If you did not intend to commit a theft or a felony upon your entry into a location, you can't be convicted of burglary.

Example: You are shopping in a department store for a sweater to wear to a job interview. While you are browsing, you see a very expensive pearl necklace. You put it on and walk out of the store. A security guard for the store catches you when you leave and you are arrested.

Although you are guilty of theft, you have not committed burglary. This is because you didn't form the intent to steal the necklace until after you entered the store.

5.2. Mistake of fact / Claim of right

Mistake of fact(sometimes referred to as "claim of right") is related to intent. For instance, you would not be guilty of a California burglary if:

you entered another's home to take back something that you thought belonged to you, or

you believed you had permission to take the item.

Example: You leave your phone at your girlfriend's house. You need it back right away, but she's not home. Without waiting for permission, you enter through the unlocked back door and get the phone.

However, you accidentally take her roommate's phone. Although you may be guilty of trespass, you are not guilty of burglary. You did not intend to commit a theft once inside. You only took something you thought belonged to you.

If, however, you enter a dwelling in the mistaken belief that it is uninhabited, you can still be convicted of residential burglary. Even if your mistake was reasonable, this mistake is not a defense.

5.3. Factual innocence

Simply showing that you didn't do it is the best defense to a burglary (or any other) charge. It's not uncommon for innocent people to get arrested by mistake.

Examples:

mistaken identity -- you happen to look like (or have the same name as) someone who was reported to the police.

misleading evidence -- your fingerprints were found at crime scene. But you had previously been there for innocent and legitimate reasons, and that's why your fingerprints were there.

the accuser is lying – the two of you had a fight and this is his way of getting back at you.

Examples like these are why it is so important to hire a California criminal defense attorney as soon as you are falsely charged. Even when the evidence appears damaging, an experienced lawyer will know how to exploit the weaknesses in the prosecution's case.

A good legal defense may convince the prosecutor to reduce...or possibly even dismiss...your charges.

5.4. Police misconduct

Sometimes the police are overeager to solve a burglary. Unfortunately, this can compel them to do things that violate your rights. Such unjust acts might include:

If police misconduct is suspected, we can run a Pitchess motion as to the officer. If granted, a Pitchess motion allows us to see whether others have made similar complaints about the officer in the past.

If we can show that the officer engages in a pattern of police misconduct, the prosecutor or judge may dismiss your charges. Or, if the case goes forward, a jury may find you not guilty at trial.

6. Related Offenses

California Penal Code 459 burglary is closely connected to a number of other offenses. Below are some of the most common.

6.1. Possession of burglary tools – Penal Code 466 PC

It is a misdemeanor crime under California Penal Code Section 466 to possess a "burglary tool" such as a picklock, crowbar, slim jim, screw driver, bump key or pliers with the intent to feloniously break into a building.

A "burglary tool" is any instrument or tool you can use to enter a structure. It also includes any tool that can assist you in committing a burglary.

Examples of burglary tools include (but are not limited to):

crowbars,

slim jims,

screw drivers, and

pliers.

Penal Code 466 does not cover items that might help during a burglary but which are not tools. Thus possession of such items as plastic bags and latex gloves is not a violation of this section. Such items may be used, however, as proof of your intent to commit a theft. If you are found with burglary tools on you when you enter a building, you will likely be charged with both burglary nd possession of burglary tools.

6.2. Penal Code 470 PC - forgery

If you knowingly create, alter, or use a written document, with the intent to defraud, you are guilty of forgery. Thus if you enter a building intending to commit forgery, you could be charged with burglary and forgery.

Examples:

You enter a bank, intending to cash someone else's check with a signature that you forged.

You enter a store, intending to pay for your purchase with a stolen credit card. Once you sign the other person's name, you have committed burglary and forgery...and possibly theft, as well.

Both grand theft and petty theft are offenses that are specifically referred to Penal Code 459 PC.

If you enter a structure or other specified location with the intent to commit a grand or petty theft, you are guilty of burglary. Most California burglary offenses involve theft, which is why these crimes are specifically listed.

Theft is divided into two categories, based on the value and type of the property taken:

In most cases Penal Code 487 grand theft is a "wobbler." As a misdemeanor the maximum punishment is one (1) year in county jail. For felony grand theft, the maximum sentence is three (3) years.

"Sometimes a client charged with grand theft from a store will also be charged with burglary. But to make that charge stick, the prosecutor must prove that our client formed the intent to steal before entering the store. So in a case involving an alleged theft from a big box store, for example, the prosecutor may have difficulty proving up a burglary charge if there's no evidence of intent – such as the client entering the store with scissors to cut tags or concealed bags to carry stolen goods."

-- California Criminal Defense Attorney Neil Shouse

6.3.2. Penal Code 484 -- petty theft

Penal Code 484 PC petty theft refers to stolen goods or services valued at or below $950. It is the exception to the burglary rule that you must enter with the intent to commit a felony. If you enter someone's home or a closed business intending to commit petty theft, you will be charged with burglary.

(However, as discussed below, if you enter an open business intending to commit petty theft, you will be charged under California's shoplifting law rather than under California's burglary law.)

Petty theft is a misdemeanor. First time offenders generally face maximum penalties of up to a $1,000 fine and/or up to six (6) months in county jail. However, most first-time petty theft offenders in California receive probation with little or no jail time.

Example: You are supposed to transfer money from the cash register at work to the safe. But one day you enter your workplace, intending to keep some of the money for yourself. If you are caught, you face both burglary and embezzlement charges.

Although it would seem that anytime you commit a burglary you automatically commit a trespass, that isn't necessarily the case. Trespass focuses whether the other person has consented to your presence on his property.

Burglary, on the other, hand focuses on your state of mind. If you intend to commit a felony or a petty theft when you enter the property, it does not matter whether or not you committed a trespass to gain entry.

Example: You enter a store intending to shoplift. Although your intent makes you guilty of burglary, you are not guilty of trespass.

But... Let's say instead that the store is closed. If you pry open a window and climb inside intending to steal, you could be guilty of burglary and trespass.

6.7. Penal Code 459.5 -- shoplifting

Penal Code 459.5--which was added to the California criminal code by the 2014 voter initiative Proposition 47--sets forth the crime of "shoplifting," which is closely related to California commercial burglary.

Specifically, 459.5 PC provides that you are guilty of the offense of shoplifting if you:

Shoplifting is a misdemeanor, carrying a maximum sentence of six (6) months in county jail.

Call us for help...

For more information about California's burglary law, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's burglary law. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

Legal References:

California Penal Code 459 PC -- Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the [California] Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, "inhabited" means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

See, e.g., People v. Wilson (1958)160 Cal.App.2d 606, 325 P.2d 106 ("One who enters a store with the intent of committing larceny is guilty of burglary although the entry was made through the public entrance during business hours.").

3 California Penal Code 460 PC. (a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree.

See also Judicial Council of California Criminal Jury Instructions (2013) – CALCRIM 1701. Burglary: Degrees (Pen. Code, § 460) Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree. First degree burglary is the burglary of an inhabited (house [or a room within an inhabited house]/vessel/floating home/trailer coach/part of a building)… All other burglaries are second degree.

People v. Alexander, (1966) 244 Cal.App.2d 301, 305. ("The well-understood meaning of the word [building] is a structure which has a capacity to contain, and is designed for the habitation of, man or animals, or the sheltering of property.")

California Penal Code 459 PC, endnote 1, above.

People v. Cruz (1996)13 Cal.4th 764, 55 Cal.Rptr.2d 117 ("The term ‘inhabited dwelling house' has been considered to have a broad, inclusive definition and has been analyzed in terms of whether the dwelling was being used as a residence.")

People v. Pettinger (1928)94 Cal.App. 297, 271 P. 132 ("[U]se of the words ‘service station' indicates a building, just as do the words railway station and police station.").

People v. Mackabee (1989)214 Cal.App.3d 1250, 263 Cal.Rptr. 183 Cal.App. 3 ("In today's world, counters are frequently used to designate the boundary between public and private spaces. Common examples are shops and services found in malls, hotels, and airports. Employees who work behind counters have a reasonable expectation that the public will not enter there, and members of the public know they may not go behind counters without permission. Here, the waist-high counter with gate reasonably communicated to all that nonemployees could not enter the office area without authorization. We therefore conclude the area enclosed by the counter was a ‘room' within the meaning of [California Penal Code] section 459 burglary law.")

People v. Coffee (1921) 52 Cal.App. 118, 198 P. 213.

People v. Nunez (1970) 7 Cal.App.3d 655, 86 Cal.Rptr. (holding that a telephone booth is a structure, but not an inhabited dwelling, for purposes of California's burglary law).

People v. Moreland (1978) 81 Cal.App.3d 11, 146 Cal.Rptr. 118 (Holding that a loading dock at the rear of a market was "building," even though two sides of it were chain link fence which did not connect with the roof and left a gap of six to 12 inches between the top of the fence and the roof, because the other two walls were made of concrete block and attached to the building in which the market was located, and the dock was completely enclosed and all the doors closed and locked at the time of the theft.)

In re M.A. (2012) 209 Cal.App.4th 317, 146 Cal.Rptr.3d 818 ("[A] closet must be treated as a room for the purposes of [California Penal Code] section 459 because occupants of a house reasonably expect additional privacy and security for the contents of their closets regardless of whether they have invited the defendant to enter the living areas of the home.").

In re Christopher J. (1980) 102 Cal.App.3d 76, 162 Cal.Rptr. 147 ("[W]ith respect to a carport appurtenant to the dwelling house, the requirement of a structure with four walls is satisfied by the dwelling house itself and it is unnecessary to find… that the carport alone satisfies the definition of a separate "building." An entry into such portion of a dwelling house is a sufficient entry to constitute the offense of burglary.").

People v. Knight (1988) 204 Cal.App.3d 1420, 252 Cal.Rptr. 17 ("The gang box is nothing more than a large metal tool box. It has wheels and a handle by which it can be pulled. A chain through that handle secured it to [the] construction trailer. It opens at the front and is slightly narrower at the top than at the bottom, but otherwise most closely resembles a small trash dumpster. This is not the type of man-made object Penal Code section 459 was designed to protect. If this is a ‘building', then so is a clothes dryer; the difference being one of degree in that the dryer is smaller and designed to hold something other than tools. That a human being might somehow fit inside either makes neither a ‘building' for the purposes of burglary law.").

People v. Chavez (2012) 205 Cal.App.4th 1274, 140 Cal.Rptr.3d 860 ("An uncovered yard in which a building is situated is not an 'integral part' of the building under any reasonable interpretation of those words, regardless of whether the yard has a fence around it.").

People v. Valencia (2002) 28 Cal.4th 1, 46 P.3d 920 ("In most instances, of course, the outer boundary of a building for purposes of burglary is self-evident. Thus, in general, the roof, walls, doors, and windows constitute parts of a building's outer boundary, the penetration of which is sufficient for entry.")

People v. Davis (1998)18 Cal.4th 712, 958 P.2d 1083 ("[U]sing a tire iron to pry open a door, using a tool to create a hole in a store wall, or using an auger to bore a hole in a corn crib are sufficient entries to support a conviction of burglary.").

People v. Valencia (2002) 28 Cal.4th 1, 46 P.3d 920 (The question is "whether a reasonable person would believe that the element of the building in question enclosed an area into which a member of the general public could not pass without authorization.").

Same ("A window screen is clearly part of the outer boundary of a building for purposes of burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization.").

See People v. Aguilar (1989) 214 Cal.App.3d 1434, 263 Cal.Rptr. 314.

See People v. Pettinger (1928) 94 Cal.App. 297, 271 P. 132, in which the defendant broke a window and lifted a sales register out through the opening.

See, e.g., People v. Glazier (2010) 186 Cal.App.4th 1151, 113 Cal.Rptr.3d 108 (insertion of a long pole with a flame burning on the end of it into an open crawlspace beneath victims' home, was a sufficient "entry" to sustain defendant's conviction of first degree attempted burglary).

People v. Yarbrough (2012) 54 Cal.4th 889, 894 ("Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building, and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary' (Valencia, supra, 28 Cal.4th at p. 11, 120 Cal.Rptr.2d 131, 46 P.3d 920), any slight crossing of which is an entry for purposes of the burglary statute.").

See also People v. Jackson (2010) 118 Cal.Rptr.3d 623, 190 Cal.App.4th 918, review denied, habeas corpus dismissed. (Balcony accessible only through victim's apartment and intended for the exclusive use of the inhabitants of his apartment "was an element of the building that enclosed an area into which a reasonable person would believe that ‘a member of the general public could not pass without authorization.'").

People v. Calderone (2007), endnote 28, above.

People v. Valencia, endnote 30, above.

See In re Leanna W. (2004) 120 Cal.App.4th 735, 738 (Finding insufficient evidence of intent to commit a felony when items went missing at a party minor threw in her grandmother's house).

See CALCRIM Jury Instruction 1700 – "A burglary was committed if the defendant entered with the intent to commit (theft/ [or] {insert one or more felonies}). The defendant does not need to have actually committed (theft/ [or] {insert one or more felonies}) as long as (he/she) entered with the intent to do so. [The People do not have to prove that the defendant actually committed (theft/ [or] ).]"

In re M.A. (2012) 146 Cal.Rptr.3d 818, 209 Cal.App.4th 317, review denied "[A] burglary is committed even when the defendant first forms the intent to enter a room inside a home to commit a felony only after he has already entered the house without any felonious intent.").

See, for example:

People v. Sparks (2002) 28 Cal.4th 71, 87 ("As the court observed in McCormack, supra, 234 Cal.App.3d 253, treating the entry at issue here as an entry for burglary is consistent with the personal security concerns of the burglary statute, because entry, from inside a home, into a bedroom of the home "raise[s] the level of risk that the burglar will come into contact with the home's occupants with the resultant threat of violence and harm.").

People v. Thomas(1991) 235 Cal.App.3d 899, 1 Cal.Rptr.2d 434 (Holding that defendant who broke into garage and then into adjoining house could be convicted of burglary if he had the intent to steal at the time that he broke into the living area of house from the garage, even if he did not have that intent when he broke into the garage). People v. Edwards (1971) 22 Cal.App.3d 598, 99 Cal.Rptr. 516 (holding that defendant committed burglary when he entered the women's restroom in a hospital cafeteria, where he had a right to be, in order to commit a theft).

In People v. Rehmeyer, (1993) 19 Cal.App.4th 1758, the defendant was convicted of Penal Code 459 burglary when he unlawfully entered a home, intending to commit the crime of indecent exposure (a wobbler).

CALCRIM 1700 – Burglary ("[A house includes any (structure/garage/office/) that is attached to the house and functionally connected with it.]").

See also: In re M.A. (2012) 209 Cal.App.4th 317, 146 Cal.Rptr.3d 818 ("It is well settled that burglary of an inhabited dwelling house may be accomplished even if the specific room that the burglar unlawfully enters is not a space where people live. In determining whether the defendant has burglarized an inhabited dwelling house, "[t]he question is not whether the specific area is used for sleeping or everyday living, but whether the area is functionally interconnected to and immediately contiguous to the residence, which is used for sleeping or everyday living." (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1110, 92 Cal.Rptr.2d 236.) "‘Functionally interconnected" means used in related or complementary ways. "Contiguous" means adjacent, adjoining, and in actual close contact.'" ( People v. Jackson (2010) 190 Cal.App.4th 918, 925, 118 Cal.Rptr.3d 623.) Under that standard, a burglary committed by unlawful entry into a closet located in a residence constitutes burglary of an inhabited dwelling house because a closet is functionally interconnected and contiguous to the portions of a residence in which people carry out activities of everyday living.")

CALCRIM 1700 – Burglary ("A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. [A (house/vessel/floating home/trailer coach/part of a building) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.] [A (house/vessel/floating home/trailer coach/part of a building) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.]")

People v. Woods (1998) 75 Cal.Rptr.2d 917, 65 Cal.App.4th 345, modified on denial of rehearing, review denied ("[T]he safety and privacy expectations surrounding an inhabited dwelling house are present in the common area laundry room of [an] apartment complex.")

People v. Nunley (1985) 168 Cal.App.3d 225, 214 Cal.Rptr. 82 ("Any consent that the owner gives to the general public to enter the lobby is vitiated by the visitor's intent to commit larceny within the building.").

People v. Villalobos (2006) 145 Cal.App.4th 310, 51 Cal.Rptr.3d 678 ("[A] hotel or motel room that is currently rented as a temporary habitation is an inhabited dwelling for purposes of first degree robbery and burglary, regardless of the length of time for which the room is rented.").

People v. Fond (1999) 71 Cal.App.4th 127, 83 Cal.Rptr.2d 660 (Hospital room in which rape victim stayed overnight was a dwelling house for purposes of first degree burglary, even though her stay in the room was less than 24 hours, she had a roommate, and her room did not have locks on the inside).

People v. Wilson (1992) 11 Cal.App.4th 1483, 15 Cal.Rptr.2d 77 ("[I]t is the element of habitation, not the nature of the structure that elevates the crime of burglary to first degree. An "inhabited dwelling house," as referenced in [California Penal Code] section 460, subdivision (a), must be defined as a person's actual place of abode, regardless of the material of which it is built. Applying that conclusion to the instant case, we find that the tent at issue herein, having four sides and a roof and being inhabited… and used for sleeping and storage of...possessions, is a dwelling house, for purposes of section 460, subdivision (a).").

See, e.g., People v. Cook 135 (1982) Cal.App.3d 785, 185 Cal.Rptr. 576 ("In the situation where the garage is an attached and integral part of the house, it is simply one room of several which together compose the dwelling. This is especially true where, as in this case, the garage can be reached through an inside door connecting it to the rest of the residence. The statistically greater probability that an occupant of the house may be in the attached garage or enclosed patio justifies the Legislature's decision to treat burglaries of such locations more severely. Cook was properly convicted of first degree burglary.").

People v. Gauze (1975) 15 Cal.3d 709, 714 ("A burglary remains an entry which invades a possessory right in a building. And it still must be committed by a person who has no right to be in the building. Applying the foregoing reasoning, we conclude that defendant cannot be guilty of burglarizing his own home [under California Penal Code 459]. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly defendant had an absolute right to enter the apartment.")

People v. Clayton (1998) 65 Cal.App.4th 418, 422 ("Clayton's entry into Kathleen's house created precisely that type of danger [the type that California Penal Code 459 burglary laws are designed to protect against], and the fact that Richard consented to Clayton's entry and knew about Clayton's felonious intent did not give Clayton an unconditional possessory right to enter for any purpose, and certainly not for the purpose of injuring Kathleen, who did not know of or endorse Clayton's intent. FN5 (People v. Salemme, supra, 2 Cal.App.4th at p. 781; People v. Felix (1994) 23 Cal.App.4th 1385, 1398 [28 Cal.Rptr.2d 860] [there must be evidence of informed consent to enter coupled with the intruder's knowledge that "the occupant" is aware of the intruder's felonious purpose and does not challenge it]; cf. People v. Gauze, supra, 15 Cal.3d at p. 716, fn. 5.) This is not a case where the defendant entered his own home or where the consent to enter has been given by the person who is the object of the intended felony.")

People v. Parker (1985) 175 Cal.App.3d 818 ("[W]here a defendant enters a residence, his ignorance that it was a residence provides no protection from the increased punishment that is imposed for his actual conduct...[California Penal Code] section 460 [puts] a potential burglar on notice that he enters any building at his own peril and risks more severe punishment if it turns out to be a residence.").

California Penal Code 459(b), endnote 4, above.

California Penal Code 461. Burglary is punishable as follows:...(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

People v. Davis (1998) 18 Cal.4th 712, 722 ("Inserting a stolen ATM card into an ATM, or placing a forged check in a chute in the window of a check-cashing facility, is not using an instrument to effect an entry within the meaning of the burglary statute [Under California Penal Code 459]. Neither act violates the occupant's possessory interest in the building as does using a tool to reach into a building and remove property. It is true that the intended result in each instance is larceny. But the use of a tool to enter a building, whether as a prelude to a physical entry or to remove property or commit a felony breaches the occupant's possessory interest in the building. Inserting an ATM card or presenting a forged check do not. Such acts are no different, for purposes of the [California] burglary statute, from mailing a forged check to a bank or check-cashing facility.")

See same.

See same.

See, e.g., People v. Young K. (1996) 49 Cal.App.4th 861, 57 Cal.Rptr.2d 12; People v. Teamer (1993) 20 Cal.App.4th 1454, 25 Cal.Rptr.2d 296 ("[A] statute prohibiting the entry into a vehicle with the intent to commit any felony sans a requirement that the felony must be committed "therein" must be…construed-that an entry into a vehicle with the intent to steal the vehicle itself is a burglary within the meaning of [California Penal Code] section 459.")

Same.

Same.

Same.

California Vehicle Code 10852 VC -- Breaking or Removing Vehicle Parts. No person shall either individually or in association with one or more other persons, wilfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner.

California Penal Code 459, endnote 1 above.

People v. Malcolm (1975) 47 Cal.App.3d 217, 120 Cal. Rptr. 667.

People v. Toomes (1957)148 Cal.App.2d 465, 306 P.2d 953; People v. Blalock (1971) 20 Cal.App.3d 1078, 98 Cal.Rptr. 231 (holding that prying open a lid was entry even though the doors to the car were unlocked).

People v. Henry (2009)172 Cal.App.4th 530, 90 Cal.Rptr.3d 915.

In re James B. (2003)109 Cal.App.4th 862, 135 Cal.Rptr.2d 457 ("If minor would have reached into the vehicle through the open window and removed the cell phone, without unlocking the door, there would have been no burglary. Or if the vehicle had been unlocked and minor had opened the door, there would have been no burglary. The pertinent issue is whether the locked state of the vehicle was altered.).

Compare with People v. Woods (1980) 112 Cal.App.3d 226, 169 Cal.Rptr. 179 (holding that there was no burglary where police officer intentionally left windows open five and one-half inches and a camera and cell phone on the seat).

People v. Allen (2001) 86 Cal.App.4th 909, 103 Cal.Rptr.2d 626.

People v. Young K (1996), endnote 65, above. ("Unlike the car's interior or its trunk, headlamp housings can be "entered" without regard to whether the car is locked, and we view the theft of headlights the same as we would the theft of windshield wipers or hubcaps. These are thefts (or attempted thefts) or auto tampering or acts of vandalism, not burglaries.").

In re Lamont R. (1988) 200 Cal.App.3d 244, 245 Cal.Rptr. 870 ("[T]he Legislature specifically required locking as an essential element of common vehicular burglary. We would do violence to this relatively clear statutory directive if we were to find that the chain and hook contraption improvised by Officer Melara constituted a lock. A door held shut with masking tape would have been just as easy to open.").

California Penal Code 461 PC. Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.

Same.

California Penal Code 461(b).

Same.

Same.

See also California Penal Code 672 PC -- Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.

California Penal Code 1203.4a PC.

California Penal Code 461(b).

California Rules of Court, Rule 4.413.

California Rules of Court, Rule 4.414.

California Penal Code 462 PC – (a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach...inhabited floating home..., or the inhabited portion of any other building [all acts punished as California first degree residential burglary]. (b) If the court grants probation under subdivision (a), it shall specify the reason or reasons for that order on the court record.

Same.

California Penal Code 464 PC -- Any person who, with intent to commit crime, enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of acetylene torch or electric arc, burning bar, thermal lance, oxygen lance, or any other similar device capable of burning through steel, concrete, or any other solid substance, or by use of nitroglycerine, dynamite, gunpowder, or any other explosive, is guilty of [California burglary] a felony and, upon conviction, shall be punished by imprisonment in the state prison for a term of three, five, or seven years.

Same.

California Penal Code 667.5(c)21.

California Penal Code 667.5(c) lists nearly two dozen crimes which constitute violent felonies. These include, but are not limited to murder, rape, kidnapping, carjacking, burglary, robbery and continuous sexual abuse of a child.

California Penal Code 667.9.

California Penal Code 12022.7 PC.

CALJIC 4.35 -- An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent [in this case for California burglary] is not a crime. Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.

People v. Parker (1985), endnote 58, above.

AMENDMENT IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

California Penal Code 19 PC. Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.

California Penal Code 466 PC -- Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the [California] Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in [California Penal Code] Section 459 [burglary] shall be deemed to be a building within the meaning of this section.

Same.

People v. Diaz (2012) 207 Cal.App.4th 396, 143 Cal.Rptr.3d 432 ("[California Penal Code] section 466 is limited to instruments and tools used to break into or gain access to property in a manner similar to using items enumerated in section 466. That the perpetrator breaks into or enters property, or attempts to do so, and happens to have access to a tool that may be used in the course of the burglary is not enough.").

California Penal Code 470 PC.

California Penal Code 473 PC. Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

California Penal Code 487 PC.

California Penal Code 489 PC.

California Penal Code 488 PC.

California Penal Code 490 PC

California Penal Code 503 PC.

California Penal Code 211 PC.

Same.

California Penal Code 213 PC.

Same.

California Penal Code 602 PC.

People v. Harper (1969) 269 Cal.App.2d 221, 222 ("We need not state the facts since reversal is required for error of law, the crime of criminal trespass [California ](s 602(l), Penal Code)FN2 not being a lesser included offenseFN3 in a charge of violation of [California burglary under] section 459 of the Penal Code.").

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